State v. Harmon
| Citation | 956 P.2d 262 |
| Decision Date | 07 April 1998 |
| Docket Number | No. 960407,960407 |
| Parties | 340 Utah Adv. Rep. 33 STATE of Utah, Plaintiff and Appellee, v. Larry Ross HARMON, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Salt Lake City, and Dexter L. Anderson, Fillmore, for plaintiff.
Edward K. Brass, Salt Lake City, for defendant.
INTRODUCTION
Larry Ross Harmon appeals from a judgment entered on a jury verdict finding him guilty of murder and attempted murder. Harmon alleges that the trial court erred regarding three evidentiary rulings, which prejudiced his case, and that he is therefore entitled to a new trial. We affirm.
On May 22, 1995, Harmon shot Douglas Greer and Raymond Thomas on a road between Fillmore, Utah, and the Frampton Heights development where Harmon lived. Greer died as a result of a bullet wound from Harmon's .45 caliber handgun. Thomas was injured but survived.
The homeowners in the rural Frampton Heights area had an informal "neighborhood watch" system of keeping an eye on one another's properties and investigating the names, license plate numbers, and activities of strangers seen in the area. Harmon, the only year-round resident, participated in the watch and reported suspicious tracks or people to the owners of the five other cabins in Frampton Heights.
At trial, Harmon and Thomas gave conflicting testimony regarding the events leading up to and following the shooting. Harmon testified as follows: He was awakened from a nap by knocking on the front and side doors of his cabin. When he looked outside, he saw two young men, Greer and Thomas, whom he did not know. Thomas was jerking on the side screen door, which was locked from the inside, apparently trying to open it. Harmon watched the two men walk away from the cabin toward a gate exiting his property. The two men then walked back toward his cabin and began looking at one of his automobiles. Harmon called out to them to state their purpose and told them to leave. Without verbally responding, they walked back toward the gate and exited his property. Harmon set out in his truck to check his neighbors' homes and to get more information about the two men and what they were doing in Frampton Heights. After checking the homes and finding nothing amiss, he spotted Greer and Thomas walking along the road leading to Fillmore. He drove past them, parked his truck on the side of the road, got out, and asked them their names and what they wanted. Greer and Thomas did not respond to his questions but continued to approach him with "unfriendly expressions," without heeding his requests that they stop. Greer approached straight on while Thomas circled around to Harmon's side. They continued to approach, even though Harmon was displaying a .45 caliber handgun he had retrieved from his truck. Backed against the door of his truck, Harmon feared for his life inasmuch as the two men were not responding to his requests to stop advancing, and it appeared that they could disarm him. Thus, in self-defense, he shot Greer once in the face and then turned and rapidly fired at Thomas. After the shooting, Harmon returned to his cabin, called 911 on his cellular phone, and reported that he had shot someone who had been trying to break into his property.
In contrast, Thomas testified as follows: He and Greer were on their way up to Twin Lakes, above Fillmore, when their vehicle became stuck in the mud. After unsuccessfully attempting to free it, they decided to walk back to town. To save time, they took a shortcut down a mountain and found themselves in Frampton Heights. They followed a fence line until they came to Harmon's property, and though neither Greer nor Thomas knew Harmon, they jumped over the fence and entered his property, hoping that the property owner might be able to help them pull their vehicle from the mud. Thomas walked up to the porch of the cabin and knocked on the door. Receiving no answer, he went around to the side door of the cabin and again knocked. When no one responded, he and Greer began walking down the road, away from the cabin. However, Harmon called out to them, and they walked back toward the cabin, believing they could still solicit help. When they were twenty to thirty feet away, Harmon began yelling at them from behind the screen door. Harmon asked them if they were ignorant and couldn't read, 1 and he told them that they were on his property and ordered them to leave. They then left Harmon's property and began walking on the road toward Fillmore. As they were walking, Harmon's truck approached from behind, passed them, and stopped about six or seven feet in front of them. Harmon got out of the truck wielding a .45 caliber handgun. Thomas and Greer stood still. Harmon held out the gun and asked Thomas if he knew what it was. Thomas replied that he did. Harmon then told him that the gun was a .45 and asked Thomas his name. After Thomas responded, Harmon turned and said something to Greer. Thomas heard the hammer go back on the gun and saw Harmon raise it and shoot Greer in the face from a distance of six to twelve inches. Harmon then pointed the gun at Thomas, asked him if he wanted to get shot, and told him to "take off running." As Thomas was running away, he heard the gun fire and felt a bullet strike his arm. He also heard several more shots and saw dirt flying in front of him.
During the trial, the medical examiner testified that Greer had been shot once in the face at a distance of six to twelve inches from the end of the gun. Thomas's physician indicated that the bullet which struck Thomas entered from the back of his arm and exited out the front. The evidence introduced at trial further indicated that Harmon fired a total of five shots from his gun, which held a maximum of eight rounds.
The jury returned a verdict of guilty on the charges of murder and attempted murder. Harmon appeals his conviction, arguing that the following three errors occurred at trial: first, during cross-examination of Harmon, the prosecutor elicited a statement Harmon had made in a police interview following the shooting which notified the jury that Harmon had invoked his constitutional right to remain silent; second, during direct examination of a deputy who had interviewed Thomas, the prosecutor elicited testimony regarding the deputy's opinion as to Thomas's credibility; and third, Harmon cites six instances of prosecutorial misconduct, wherein the prosecutor repeatedly attempted to "impugn the integrity of defense counsel."
In response to these alleged errors, Harmon moved the trial court to dismiss the charges, to grant a mistrial, to arrest judgment, and to grant a new trial. The court denied these motions. On appeal, Harmon maintains that the trial court erred in denying his motions, that the alleged trial errors prejudiced his case, and that he is therefore entitled to a new trial.
A trial court has discretion in determining whether to grant or deny a motion for a new trial, and we will not reverse a trial court's decision absent clear abuse of that discretion. State v. Wetzel, 868 P.2d 64, 70 (Utah 1993); State v. Thomas, 830 P.2d 243, 245 (Utah 1992).
Harmon first argues that the prosecutor violated Harmon's federal right to due process of law in eliciting evidence that he invoked his Miranda 2 rights during a police interview. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (). Such a violation, he argues, was harmful error under Doyle and therefore requires reversal. The State, on the other hand, argues that under Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), no Doyle violation occurred because the prosecutor did not use Harmon's silence against him.
The record indicates that one of the key issues at trial was whether Harmon shot Thomas while Thomas was advancing on Harmon or running away. Harmon's testimony during direct examination suggested that he fired at Thomas only while Thomas was advancing. To impeach this testimony, the prosecutor on cross-examination sought to "refresh" Harmon's memory of the shooting and his interview with a police officer. The following exchange between the prosecutor and Harmon occurred:
Q [prosecutor]: This dialogue here indicates that Raymond was running away when you shot him. Is your testimony today different [than] that or is it the same as the other times or you just can't remember for sure?
A [Harmon]: It doesn't tell me he was running away but I don't recall.
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